26 September 2018 by Dispute Resolution Alert

While the clock ticks by…The SCA deals with the factors when considering the granting of condonation under the Promotion of Administrative Justice Act

It would be wise to carefully consider all aspects of a matter before challenging an adverse decision made by an organ of state. However, such consideration should occur while being ever mindful of the clock that ticks by in terms of s7(1) of the Promotion of Administrative Justice Act, No 3 of 2000 (PAJA).

The Supreme Court of Appeal (SCA) recently dealt with a matter where it once again considered the factors that play a role when a court makes a decision in terms of s9 of the PAJA, which bestows upon a court the authority to exercise its discretion in extending the 180-day period provided for in s7(1) if the interests of justice so permit.

In the case of Matoto v Free State Gambling and Liquor Authority and others (986/2017) [2018] ZASCA 110, Matoto lodged an application in terms of s41 of the Free State Gambling and Liquor Act, No 6 of 2010 (FSGLA) with the Free State Gambling and Liquor Authority (Authority) which application was ultimately refused.

Thereafter, Matoto launched review proceedings out of the Free State Division of the High Court, Bloemfontein (High Court). The High Court ordered that the decision of the Authority be reviewed, and that the application be remitted to the Authority for reconsideration. On 18 March 2015, Matoto was made aware that the Authority refused the application once again. During March and May 2015, Matoto’s attorney sent numerous letters to the Authority concerning his intention to institute review proceedings. However, the review proceedings to set aside the second refusal were only launched on 29 September 2015. By then, the 180-day period envisaged in s7(1) of the PAJA had lapsed and Matoto accordingly sought an order in terms of s9(1) of the PAJA for an extension of the 180-day period. The High Court refused the extension and accordingly dismissed the appeal without considering the merits of the review.

Matoto was subsequently granted leave to appeal to the SCA. Ponnan JA, who penned the judgment, had regard to the jurisprudence surrounding s9 of the PAJA. The SCA ruled that while the prospects of success of a matter may be an important consideration, it is by no means decisive. The SCA stated that in cases of flagrant breaches of the rules and unconscionable delay, especially where there is no reasonable explanation therefor, a court may refuse condonation. As the explanation offered by Matoto was so unacceptable and wanting, the SCA confirmed the order of the High Court and consequently dismissed the appeal.

The undoubted merit of a litigant’s case may therefore not be enough to result in the extension of the 180-day period, and the delay in challenging an adverse decision may prove to be fatal.

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